1. Introduction
1.1Legal privilege allows people to protect their communications with their lawyer from external scrutiny, if those communications are confidential and made for the dominant purpose of obtaining legal advice or engaging in litigation. These communications are privileged (or immune) from disclosure because ‘full and unreserved communication’ between a client and their lawyer is necessary to secure the ‘competent representation of … the ordinary person before the courts’[1] and government bodies exercising investigative power.[2] Consequently, legal privilege is an important safeguard ‘against tyranny and oppression’, and has become a foundational element of the administration of justice in our legal system.[3]
1.2However, the development of legal privilege has not kept up with innovations in legal service delivery. All Australian governments now fund and promote integrated legal assistance services.[4] These services combine free legal assistance with free social support, such as health care or specialised family violence advocacy, to improve access to justice for people experiencing disadvantage.[5]
1.3Many people struggle to identify the legal nature of their problems and often do not seek legal assistance.[6] Even if a person experiencing disadvantage seeks legal assistance, they are often unable to carry the burden of advancing their legal case without additional support services.
1.4The integrated nature of these services is designed to benefit clients, service providers and our justice system, yet it conflicts with requirements for legal privilege, complicating the administration of justice in Victoria.[7] Two requirements of legal privilege are particularly difficult to establish in this setting—confidentiality and the dominant legal purpose. The scenario below places these difficulties in a practical context, allowing us to consider the implications:
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Scenario 1 |
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A heavily pregnant woman, Tania, attends a scheduled weekly check-up with her midwife at her local hospital and discloses that she feels unsafe at home. The midwife suggests that Tania engage with the hospital’s health justice program. Because she wants to continue monitoring Tania’s health, the midwife arranges for the meeting to take place in her office in the maternity ward. Tania tells the midwife, social worker and lawyer that she is afraid her partner will kill her. She has been living in her car for the past few days and has not been eating or sleeping properly. After working together on a risk assessment and management plan, they agree that the social worker will arrange emergency accommodation, the lawyer will apply for a family violence intervention order, and the midwife will arrange for a doctor to conduct more extensive health checks. In the weeks and months that follow, the midwife, social worker and lawyer have multiple conversations with Tania and each other as they support her to set up a new life away from her violent partner. The lawyer might ask the midwife for medical records that help prove Tania has been subjected to family violence. The social worker might ask the lawyer for a copy of the family violence intervention order to support Tania’s housing application. The lawyer may wait for the social worker to confirm Tania has been accepted into a refuge before applying for the intervention order so that, when the police serve Tania’s partner with a notice to appear in court, he cannot find and kill her. If Tania’s employer tries to terminate her employment because she cannot return to the office while living in the refuge (where visiting places a family violence perpetrator can find you is often prohibited), the lawyer could explain to the employer that termination would be illegal.[8] |
1.5In this scenario, to maintain legal privilege, Tania would need to show that the initial conversation with her lawyer was confidential even though the midwife and social worker were present. That might not be too difficult, but what if the social worker took handwritten notes of the meeting and filed them in her office where other social workers could access them? Or what if the midwife took notes of the meeting in Tania’s electronic hospital record so that other health care professionals could read them and adequately treat her? Would these records also be considered confidential?
1.6In addition, Tania would need to demonstrate that the dominant purpose of the conversation was legal. While one of the purposes was clearly legal, there were several other purposes, including finding safe housing and checking on the health of Tania and her baby. Consequently, some parts of the conversation could be privileged, while others could not, and distinguishing between the two would be difficult.
1.7If Tania were to lose legal privilege over these communications, there could be multiple impacts. To provide the most effective support, the social worker and lawyer would have asked Tania questions about her relationship, coping strategies, mental health, work history and other matters that could later be used against her in court or other investigative proceedings. Tania might have revealed past experiences of abuse, unemployment, drug use, suicide attempts or homelessness. And it is likely that this information would be contained in the records of the midwife, social worker and lawyer.
1.8If Tania’s (now) ex-partner made a complaint to child protection services about their child’s welfare, the midwife would likely be required under information sharing laws to provide a copy of their records to child protection. Tania would have a stronger case for arguing the social worker’s records were privileged, but she would not know if they were privileged unless she fought it in court.
1.9If Tania’s ex-partner applied in the Family Court for an order compelling the midwife to share her records with him in an attempt to show that Tania is unfit to care for their child, the midwife may again be compelled to provide her records. The same is true of the social worker.
1.10By accepting legal services in this way, Tania has effectively given up her right to legal privilege, even though the associated social services were integral to—and a necessary precondition for—her capacity to exercise the legal remedies available to her.
1.11Alternatively, Tania could have chosen not to participate in the health justice program, and returned to sleeping in her car or gone home to her violent partner.
1.12For someone in this situation, the Victorian legal system allows access to fully integrated legal assistance services or the right to legal privilege, but not both. This inquiry explores that tension, and whether the law aligns with the community’s values and expectations regarding the administration of justice.
Community law reform project
1.13This is a community law reform project. These are projects the Commission initiates in response to community suggestions.[9] Community law reform projects are about issues of general community concern and are limited in size and scope. The topic for this inquiry was nominated by Eastern Community Legal Centre (ECLC).
1.14ECLC provides integrated legal assistance services to people experiencing family violence, homelessness, mental illness, and drug and alcohol issues. It most often does this by providing wraparound services to clients in crisis when they seek help at a hospital or medical centre.
1.15ECLC has taken steps to mitigate the risks surrounding legal privilege in its integrated programs.[10] Yet the core tension remains—the provision of integrated services enhances access to justice for clients facing disadvantage, but the requirements of legal privilege mean that each step towards integration creates additional risks to legal privilege. ECLC (and other providers of integrated legal assistance services) remain concerned that this situation places an unfair burden on their clients.
1.16After conducting a preliminary investigation, the Commission concluded that an inquiry into law and practice on this issue would be of significant public benefit. The terms of reference on pages 3-4 establish the scope of this inquiry.
Guide to this paper
1.17The primary elements of the law on legal privilege in Victoria are set out in Chapter 2. The common law mostly applies to investigative bodies, whereas legislation mostly applies to court proceedings and associated preliminary processes.
1.18Chapter 3 explains how and why integrated legal assistance services have evolved over the past 50 years, noting their primary purpose is to enhance access to justice for people experiencing disadvantage and to improve their life outcomes.
1.19The risks to legal privilege when providing integrated legal assistance services are discussed in Chapter 4, while Chapter 5 examines how service providers mitigate these risks.
1.20Chapter 6 considers alternative approaches to legal privilege and integrated legal assistance services in other common law jurisdictions.
1.21Two potential options for reform are put forward in Chapter 7. The first is the establishment of a professional privilege covering communications between clients and social service professionals in loosely integrated legal assistance service settings. The second is the establishment of a new category of legal privilege that would incorporate communications between clients, lawyers and social service professionals in closely integrated legal assistance service settings. The scope, elements, eligibility requirements and implications of each option is examined with a view to seeking community feedback on their potential operation and impact.
1.22The next steps are in Chapter 8, where we encourage everyone with an interest in this issue to take part in our inquiry.
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Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475, 490 (Deane J).
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Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543, 552–3, [9]-[10]; cited in Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278, [137].
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Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475, 490 (Deane J).
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Council of Australian Governments, National Partnership Agreement on Legal Assistance Services (Report, 26 July 2017) <https://www.ag.gov.au/legal-system/publications/national-partnership-agreement-legal-assistance-services>; Council of Attorneys-General, National Strategic Framework for Legal Assistance 2015-20 (Report, 2019); Commonwealth of Australia and the States and Territories, National Access to Justice Partnership Agreement 2025-30 (Report, November 2024) <https://federalfinancialrelations.gov.au/sites/federalfinancialrelations.gov.au/files/2025-09/agreement-national-access-to-justice-partnership-signed.pdf>.
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See Chapter 3 of this report for a review of the evidence regarding the benefits of integrated approaches.
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Nigel J Balmer et al, The Public Understanding of Law Survey (PULS) Volume 1: Everyday Problems and Legal Need (Report, Victoria Law Foundation, 2023) 99 <https://puls.victorialawfoundation.org.au/publications/everyday-problems-and-legal-need>.
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Mary Anne Noone and Kate Digney, “It’s Hard to Open up to Strangers” Improving Access to Justice: The Key Features of an Integrated Legal Services Delivery Model (Research Report, Rights and Justice Program, School of Law, La Trobe University, September 2010) <https://lsbc.vic.gov.au/sites/default/files/2020-08/Improving%20Access%20to%20Justice%20Research%20Report.pdf>.
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This is a fictional case study drawing on facts from case studies featured in a number of evaluations of integrated legal services, for example: Eastern Community Legal Centre, “It Couldn’t Have Come At A Better Time”: Early Intervention Family Violence Legal Assistance (Report, 2018) <https://www.eclc.org.au/wp-content/uploads/ItCouldntHaveComeAtABetterTime-MABELS_EasternCLC.pdf>; First Step Legal, Summary of Evaluation Findings (Report, 2024) <https://cdn.prod.website-files.com/64e6d2582dd4319151be6a26/67ec5ac37d4a49335a3fed5a_First-Step-Legal—Summary-Evaluation-Findings-2024.pdf>; Inner Melbourne Community Legal, Health Justice Partnership Legal Clinics in the Hospital – Evaluation Report on the Health Justice Partnership: The Royal Melbourne Hospital and Inner Melbourne Community Legal (Report, 2018) <https://imcl.org.au/assets/downloads/RMH_Evaluation%20Report%202018.pdf>.
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‘Suggest a Community Law Reform Project’, Victorian Law Reform Commission (Web Page) <https://www.lawreform.vic.gov.au/engage-in-law-reform/suggest-a-reform/>.
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See Chapter 5.
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